A exceção de não cumprimento e o direito de retenção na empreitada de direito privado

Abstract

The exception of non-compliance and the right of retention constitute legitimate causes for non-compliance with a due provision when the counterparty, in turn, does not fulfill the obligation to which it is attached. Generally considered as close figures, they register, however, notable differences in the legal regime which allow their distinction. Given the frequency with which both institutes are analyzed by doctrine and jurisprudence - not always in a clear and consensual way - it is particularly important to ascertain the specific terms in which each one can be invoked within the scope of the contract of work, from which result for the parties the main obligations to carry out the work and to pay the price. With the possibility of invoking the exception of non-compliance by the contractor and the owner of the work being established, and the thesis of attributing the right of retention to the contractor being now peacefully accepted, the scope of application of both figures is analyzed, seeking to assess, namely, whether the contractor may resort to each one indiscriminately to refuse delivery of the work already carried out, in the event that the price is not paid in due terms.

Date of Award	22 Jun 2023
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Isabel Menéres Campos (Supervisor)